Ignore #3 at your own risk.
RISK: Do you know it when you see it?
Your job is to create great advertising and marketing. Our job is to identify, assess, and explain any potential legal risks connected to the campaign. While every advertisement is unique, the review process is not; it requires expertise, skill, and perspective. Consider just a few things that can go quickly awry in a campaign:
- Could a copyright, trademark, or some other infringement claim bring the campaign to a sudden, disastrous stop?
- Are all the advertising claims properly substantiated? Are requisite disclaimers in place?
- Does a particular product category invite increase regulatory or competitor scrutiny?
Legal review during campaign development can help make the difference between a successful campaign and one that attracts unwanted attention or even litigation. This includes scrutiny from the Federal Trade Commission, competitors, activist organizations, and social media blowback. Legal risks abound in advertising and marketing endeavors; we want to help you make sense of them.
- Campaign Legal Review
- Agency Service Agreements
- Celebrity Spokesperson & Talent Agreements
- Direct Response License Agreements
- FTC Compliance Analysis
- NAD & ESRP Proceedings
- Media Clearance Services
- Trademark - Copyright Registration & Infringement Enforcement
- Sweepstakes & Contest Official Rules
SILICON BEACH IS OUR BACKYARD
We are minutes away from the media and tech convergence taking place in Santa Monica, Venice, Playa Vista, El Segundo and Manhattan Beach. But it’s not just a physical presence; we understand and are part of the culture that thrives on innovation and disruption. New technology platforms are launching every day, quickly outpacing existing laws and regulations. The issue is how to thread the needle and hopefully avoid regulatory scrutiny. That’s the role we play in helping both emerging and established companies.
we play well with others
Many of our clients are advertisers or corporate counsel who require our expertise in advertising and marketing law. We are comfortable in a purely behind the scenes role directly assisting in-house counsel or interacting with a company’s employees.
We’re always happy to discuss a potential issue with new and existing clients, so please don't hesitate to contact us.
TEAM PLAYERS: WE ARE WHAT WE KNOW
D. JOHN HENDRICKSON
D. JOHN HENDRICKSON
Mr. Hendrickson has established a practice that concentrates on all aspects of advertising law. With more than 30 years’ experience in the advertising industry, he represents advertisers and advertising agencies, production companies, talent endorsers, direct response marketers and product inventors. Mr. Hendrickson is an accomplished lecturer, frequently speaking at national and international industry forums. He is also an instructor at the Advanced Institute on Advertising Studies sponsored by the American Association of Advertising Agencies. After receiving a Bachelor of Arts degree with distinction from Stanford University in 1977, Mr. Hendrickson earned his Juris Doctor degree, cum laude, from Pepperdine University School of Law in 1981.
HOLLY J. BAYNE
HOLLY J. BAYNE
Ms. Bayne brings a unique blend of industry and marketing experience to the practice of law. In 2001, she founded the Law Office of Bayne & Associates, a Washington D.C.-based firm specializing in food, drug, medical device, and cosmetic law, with a particular focus on matters concerning the regulation of foods, dietary supplements, and botanical products by the U.S. Food and Drug Administration, Federal Trade Commission, U.S. Department of Agriculture, U.S. Customs and Border Protection, and other federal and state regulatory agencies. Ms. Bayne is admitted to practice law in the District of Columbia and California.
NICHOLAS A. PERSKY
NICHOLAS A. PERSKY
Mr. Persky serves as Senior Counsel to Manhattan Advertising & Media Law, Inc., specializing in the areas of advertising, entertainment, and direct response marketing law, with an emphasis on drafting and negotiating a wide variety of contracts, including advertising agency, licensing, talent and production agreements. Mr. Persky received his Juris Doctorate from the University of Southern California School of Law and his Bachelor of Arts from the University of California at Los Angeles. Prior to joining MAML, Mr. Persky practiced in the litigation department of Skadden, Arps, Slate, Meagher & Flom in Washington, D.C.
GARY P. KOHN
GARY P. KOHN
Mr. Kohn practices entertainment and corporate law with over 25 years of experience. Mr. Kohn’s entertainment law practice specialties include new media contracts, reality TV contracts, infomercial marketing contracts, licensing contracts, celebrity contracts, endorsement and sponsorship contracts, film contracts, music contracts and sports contracts. Mr. Kohn’s corporate law practice specialties include startup companies, LLC and corporation structure and formation and business contracts. Mr. Kohn heads his own firm in Los Angeles and is admitted to practice law in California and New York.
PHILIP K. REBENTISCH, ACP
PHILIP K. REBENTISCH, ACP
Director of Media Clearances
Prior to his current endeavors in the legal field, Mr. Rebentisch worked as a television and digital video writer-producer-director. Switching to the legal side of the media business, he earned his national accreditation as an Advanced Certified Paralegal in trademark law. As the firm’s Director of Media Clearances, he enjoys working with clients regarding copyright and trademark risk analysis, IP clearance requests, and licensing agreements. He is also the firm’s go-to-guy for sweepstakes and contest official rules. In 2015, Mr. Rebentisch was elected as President-Elect of the American Marketing Association Los Angeles. His one year term as chapter president begins in July 2016.
Ms. Irving came to Manhattan Advertising & Media Law, Inc. with much legal experience. She had either worked with law enforcement or attorneys throughout most of her career. While employed with the City of Los Angeles, she was with the Los Angeles Police Department; promoted to Airports Personnel; and promoted again to the City Attorney’s Office at the Airport as a Legal Secretary. After many years, she left city employment and accepted a position with Atlantic Richfield Company (ARCO), then the seventh largest oil company in the world. After a stint in the Tax and Environmental Departments, she was promoted to ARCO’s Legal Department, where she spent nine years as Executive Legal Assistant to an Associate General Counsel. She then welcomed the opportunity to join MAML on its ground floor and help organize its expanding operations.
CHRISTINA S. LOZA
CHRISTINA S. LOZA
Christina S. Loza is the Managing Partner of Loza & Loza, LLP, a mid-size Intellectual Property law boutique located in Southern California. Ms. Loza has experience in all areas of intellectual property law including trademarks, patents, copyrights, trade secrets, domain name disputes, internet law, eBay dispute resolution, as well as, IP licensing, counseling, and litigation. Ms. Loza graduated from Loyola Law School and received her Bachelor of Science in Biology from Loyola Marymount University. She is admitted to practice before all state and Federal courts in the State of California and is a registered patent attorney.
it was all going great until it wasn't
The relationship between an advertising agency and its client is unique in the business world. Passion, creativity, goals, and success are shared with equal fervor by two (or more) companies.
The agency service agreement is an essential element of a strong and productive business relationship. A comprehensive, well-negotiated agreement puts the agency in a good place to excel with its creative efforts and the advertiser in a good place to succeed with its product. It is the business side of the ad business, and we feel that the agreement’s importance cannot be underestimated.
In general, the agreement should lay out the terms and conditions for:
- Services to be rendered
- Compensation and payment
- Cost and expense reimbursements
- Content ownership
- Term – Cancellation – Notice Provisions
- Rights of the parties upon termination
- Confidential information requirements
When it comes to drafting an agreement that protects its clients, a law firm needs to have been around the block a few times. We have the worn shoes to prove it.
IT’S NOT JUST ABOUT THE SIZE OF THE STAR’S TRAILER
The barriers are falling by the proverbial wayside for A-list talent to appear in commercials and infomercials. As a result, it is important to understand that a comprehensive spokesperson/talent agreement is essential. This protects both parties and sets the expectations and the ground rules.
Some standard elements to consider are:
- Scope of services
- Union jurisdiction
- Compensation structure
- Approval rights
- Social media performance minimums & training
It’s also critically important to understand that A-List talent negotiations (and even B and C levels) are typically a back and forth process. Agreements are unlikely to come together in a week and timing can be critical in landing top-level talent.
We’ve conducted extensive negotiations with celebrity talent here in LA and elsewhere. Like any high-profile endeavor, this is never for the faint of heart, and we don’t take kindly to fainting! Our job is to calmly get the deal done. No drama or hysterics on our end; we prefer measured, diplomatic, and professional approaches to all talent negotiations.
Call now, operators are standing by! (No, not really)
The Direct Response industry thrives on new ideas, products, and services to bring to the marketplace. For DR marketers, a comprehensive License Agreement with the rights holder is absolutely crucial. And for the inventor, reasonable approval rights and fair compensation for the value of the licensed product is a necessary part of the equation.
At a minimum, the License Agreement should address the following:
- Definition of the Product Line
- Intellectual property rights
- Compensation & royalty rates
- Roll out & payment dates
- Default remedies
- Termination and reversion of rights
All those details need to be clearly mapped out, in writing. We have numerous years of experience in drafting Licensing Agreements, renewals, and amendments for a wide range of producers, products and services. In fact, many of our clients have routinely been in the top ten of DR programming as measured by various industry organizations. We’re always happy to see those kinds of results! When it comes to DR marketing, we’re in your world like nobody else!
FTC REGULATIONS APPLY TO MOBILE TOO!
The Federal Trade Commission revised its .com Disclosures Guides in March 2013. The updated Guides now include information pertaining to social media and mobile advertising. We’ve written articles and newsletters about social media and we stay up to speed on this fast-changing convergence of law and tech. We also have a seminar presentation available for those clients (or potential clients) that need information about the Guides.
To sum it up, if you’re engaged in online, mobile, or social advertising, you’ll want to ensure you’re operating within the FTC’s framework. We’re here to help.
CLEAR IT OR BLUR IT!
Intellectual property disputes are on the rise as many companies and individuals are stepping up enforcement of their intellectual property rights. To help avoid a potentially devastating infringement challenge, our services include:
1. Reviewing campaign themes, executions, headlines, and graphics/art to provide a preliminary campaign risk assessment;
2. Conducting preliminary headline/tagline searches via the U.S. Patent and Trademark Office and online searches in both the U.S. and Canada. We also have a relationship with a Canadian law firm (and other law firms around the globe) when international expertise is needed;
3. We also contact third party rights holders directly to secure permission to license their intellectual property. In some cases, the process may be as simple as exchanging emails; other executions may require more formal agreements and licensing fees. Every clearance matter takes on its own life and requirements.
Securing music rights generally involves several players; the copyright holders of the composition (aka Publishing Rights), and the copyright holders of the master recording (aka Sync Rights). Music rights are generally the most complicated as various rights holders are involved. Just ask us, we know.
TRADEMARK & COPYRIGHT REGISTRATION
Applying for a trademark for a brand name, product, service, or tagline is an important endeavor for many of our clients. We work closely with an intellectual property law firm that is Of Counsel to facilitate trademark registration. These specialized services include: placing and analyzing Thomson® trademark searches, filing and monitoring trademark applications with the USPTO, and renewing registrations.
We highly recommend that clients register their content with the U.S. Office of Copyright. In general, it is a fairly straight forward process, and doing so may have certain advantages when prevailing in copyright infringement litigation.
For both trademark and copyright applications, we are always happy to help our clients with the filing process as well as with protecting their IP interests.
No rules may lead to a really bad day, or year.
Advertisers love sweepstakes (random drawing) and contests (based on skill) as they can generate tremendous brand interest for relatively modest costs. Unfortunately, they are governed by extensive state and federal law. Also, social media platforms such as Facebook and Twitter® consistently change their requirements for promotions run on their platforms.
We stay current on those changes amid the variety of social media outlets. Without a set of solid rules in place, bad things can happen to even the smallest promotion.
When things go wrong with a sweepstakes or contest, regulatory scrutiny and class action litigation are distinct possibilities. That’s why a solid set of official rules is important for the advertiser, the agency/marketer, the entrants, and the prize provider. The rules are essentially a contract between the sponsor and the entrants, and they can save the sponsor’s bacon if problems erupt.
We love to draft rules for a variety of promotions. We’re good, we’re fast, so let us know how we may be of help.
You gotta have ‘em!
In turn, the policy must mirror the entity’s actual data collection and use procedures. Some states, including California, require that commercial entities disclose their data collection endeavors, including Do Not Track requests.
Agency and marketing cultures are unique and have industry-specific needs. We understand:
- Campaign deadlines and the need for quick, responsive feedback.
- Pre-production, production, and post-production processes, expenses, and personnel.
- The need to provide options beyond saying “no, that’s high risk.”
- It is an absolute necessity to stay current on marketing, tech, and media trends.
With all that in mind, here’s a short sampling of issues that come up from time to time:
- Can a parody be deemed “fair use” in advertising?
- May SAG-AFTRA talent work on a non-union spot?
- Does a sponsored Tweet by celebrity talent need to be disclosed as such?
- You’re doing a product giveaway promotion on Facebook. Do you need any rules?
- Why are proper disclaimers/disclosures so important to the networks, competitors, and the FTC?
- Why is it important to have a substantiation bible?
- You wrote some campaign copy while killing time at an organic gardening clinic. Can you now say the copy is a clinical study? What about clinically proven?
- You downloaded a photo from a friend’s social media account. Do you need her permission to use it in an online ad?
- Why is a preliminary trademark search important for campaign headlines?
- Why do you need to clear or blur that sign/mural/banner in the location footage?
For answers to these and many other burning issues, get a hold of us.
we turned ten!
We are celebrating our 10th Anniversary this year, and we couldn’t be more excited. As a way to give back to our loyal clients and friends (and, in all honesty, because we love what we do), we wrote a book entitled AD-INFINITUM: Legal Checklists for the Advertising Agency. It’s available in both print and digital formats via Amazon.com.
Our clients know that the advertising business is a fascinating combination of creativity, content creation, data analysis, media strategy, and business acumen. But if advertising professionals are unaware of the basic laws, regulations, and principles that govern our industry, even the best campaigns can come to a screeching halt. We wrote this book to help you better understand the legal side of modern advertising and hopefully avoid issues that can affect any campaign, no matter the size. It’s written in an accessible style for industry professionals, in-house counsel, and law firm personnel, providing quick summaries for a variety industry-related topics. Plus, it’s perfectly sized to fit in your backpack or brief case without resulting in a trip to the chiropractor!
We love our office. Contact us there!
Manhattan Advertising & Media Law, Inc.
237 California Street
El Segundo, CA 90245